C. O. BROWN, District Judge.
Samuel Scott Sowers died at his residence near Jackson, on the 18th day of June, 1920, leaving a widow, the plaintiff in error in this case, and a minor son, eight years old. The widow authorized a message to the defendant in error, W. J. King, an undertaker doing business at Driggs, Idaho, asking him to come to the Sowers ranch, bring with him a
black casket, and be prepared to embalm the body for shipment. The defendant in error at once employed a local garage to take him and the casket and necessary equipment to the Sowers ranch. Owing to the muddy condition of the roads, at this season of the year in this locality, they did not arrive at the ranch home until that evening, spending all day in making the trip of about forty two miles, it being necessary to be drawn by team over the divide between Driggs, Idaho, and Jackson, Wyoming.
Arriving at the Sowers ranch, a son of the plaintiff in error, by a former marriage, met the defendant in error and informed him that because of the sudden fatal termination of the illness of his step-father, his mother was in no condition to do business, and had asked him to make all the necessary funeral arrangements. It was then arranged between' him and the undertaker, that the body be taken to Jackson that night, and the following day to Driggs, Idaho, and be there prepared for shipment to the former home of the decedent in Harrison, Ohio.
Because of the condition of the highways it took all of the following dajr for the undertaker to make the return trip. The following morning the undertaker and the son had some conversation over the telephone between Driggs, Idaho’ and Victor, Idaho, where he and his mother had arrived preparatory to making the trip to Ohio with the body. It was then arranged in this conversation that because of the condition of the body it be placed in a metallic casket. The undertaker met the funeral party at the train at Driggs, with the body, which was taken to the former home of the decedent and there buried.
Three Hundred and thirty dollars were paid on the undertaking bill at the time he received the body. The total undertaking bill, including tickets for the body of the deceased, and escort to Harrison, Ohio, including an auto charge to the Sowers home and return, of Eighty Dollars, and tire team hired to pull the car over the divide on each trip, of $21.00, amounted in all to Twelve Hundred and
twenty nine Dollars and seven cents, no part of which, has been paid except the Three Hundred and Thirty dollars above.
On the 23rd day of September, 1920, the undertaker presented a claim in due form to the administratrix of the es¡-tate, claiming a balance due of eight hundred and ninety dollars and seven cents. This claim was rejected and, thereafter, on the 9th day of December following, this action was brought against the plaintiff in error as administratrix of the estate to recover the balance claimed to be due.
The petition is the ordinary petition on an account, with the added allegations of the presentation of the bill to' the administratrix and its rejection, and the further allegation: “That the plaintiff is informed and believes-, and upon such information and belief alleges that the said defendant as such administratrix, has assets in her, hands applicable to the payment of plaintiff’s, claim, sufficient to pay the same, and that said assets can be applied to the payment of said claim without materially affecting the rights; of others entitled to priority or equality of payment with said plaintiff. ’ ’
The answer admits the appointment of the administra-trix, the presentation of the claim to her for allowance and its rejection, and denies the other allegations of the petition, and then alleges in substance that the plaintiff so negligently and unskillfully failed and omitted to properly prepare and embalm the body of Samuel Scott Sowers, deceased, for burial, and to carefully and securely enclose and encase the same in a casket, that said body in three days after death of said deceased, emitted extensively such disagreeable and unpleasant odors that the train crew on the railroad, on which it Avas being transported, protested against further carrying the body and threatened to remove the same from the train, and that when it reached its destination in the State of Ohio, about four days after his death, it was in such a condition because of the defective embalming and preparation, and emitted extensively such
disagreeable and unpleasant odors and gases, tliat the funeral services bad to be held out of doors, and the mourners could not view the remains of the deceased * # * and for a further defense to the petition, defendant alleged that the sum paid by her to the plaintiff as alleged in his petition, to-wit-: the sum of Three Hundred and Thirty Dollars, is greatly in excess of the expenses actually incurred and services rendered by plaintiff, as alleged' in his petition.
The reply thereto is a general denial. The case was tried to a jury. The jury found in favor of the plaintiff and fixed the amount of his recovery in the sum of Five Hundred and ¡forty Four Dollars and eighty two cents.
The plaintiff in error seeks to reverse the judgment of the lower court on the sole ground that the petition nowhere alleges that the funeral expenses was a reasonable charge in view of the condition in life of the decedent and of the value of his estate.
Funeral expenses or expenses necessary for a decent burial of the decedent’s body are not properly a claim against the estate in the sense that a claim is an obligation contracted or incurred by the decedent. Some courts and text writers prefer to call it a part of the expenses of administration. However, it is not properly a part of the expenses of administration. It is rarely contracted by the administrator or executor of the estate. Necessarily in most cases the funeral must have taken place before the appointment of the executor or administrator. Funeral arrangements are ordinarily taken care of and arranged by the near relatives and friends of the decedent, sometimes by a stranger, or by ■ the undertaker himself. When reasonable, in view of the size of the estate and the condition in life of the decedent, the expenses of a Christian burial are made a claim against the estate, by implication of law.
‘ ‘ The law with reference to such matters is well settled, and generally understood. Such charges are not, strictly speaking, debts due from the deceased, but charges which
the law out of decency imposes upon his estate. And, so far as these are reasonable in amount, they take legal priority of all such debts; as likewise, do the administration charges. A decent burial should comport with the social condition of the deceased and the amount of his fortune. Justice to creditors, as well as to one’s surviving family, demands however, that there should be no extravagant outlay to their loss. ’ ’
Foley v. Broeksmit, 119 Ia. 457, 93 N. W. 344, 60 L. R. A. 571, 97 Am. St. Rep. 324.
“Funeral expenses are an obligation created by law against the estate of a decedent. ’ ’
Marshall Trust Company v. Carr, (Tenn. Ch. App.) 62 S. W. 204.
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C. O. BROWN, District Judge.
Samuel Scott Sowers died at his residence near Jackson, on the 18th day of June, 1920, leaving a widow, the plaintiff in error in this case, and a minor son, eight years old. The widow authorized a message to the defendant in error, W. J. King, an undertaker doing business at Driggs, Idaho, asking him to come to the Sowers ranch, bring with him a
black casket, and be prepared to embalm the body for shipment. The defendant in error at once employed a local garage to take him and the casket and necessary equipment to the Sowers ranch. Owing to the muddy condition of the roads, at this season of the year in this locality, they did not arrive at the ranch home until that evening, spending all day in making the trip of about forty two miles, it being necessary to be drawn by team over the divide between Driggs, Idaho, and Jackson, Wyoming.
Arriving at the Sowers ranch, a son of the plaintiff in error, by a former marriage, met the defendant in error and informed him that because of the sudden fatal termination of the illness of his step-father, his mother was in no condition to do business, and had asked him to make all the necessary funeral arrangements. It was then arranged between' him and the undertaker, that the body be taken to Jackson that night, and the following day to Driggs, Idaho, and be there prepared for shipment to the former home of the decedent in Harrison, Ohio.
Because of the condition of the highways it took all of the following dajr for the undertaker to make the return trip. The following morning the undertaker and the son had some conversation over the telephone between Driggs, Idaho’ and Victor, Idaho, where he and his mother had arrived preparatory to making the trip to Ohio with the body. It was then arranged in this conversation that because of the condition of the body it be placed in a metallic casket. The undertaker met the funeral party at the train at Driggs, with the body, which was taken to the former home of the decedent and there buried.
Three Hundred and thirty dollars were paid on the undertaking bill at the time he received the body. The total undertaking bill, including tickets for the body of the deceased, and escort to Harrison, Ohio, including an auto charge to the Sowers home and return, of Eighty Dollars, and tire team hired to pull the car over the divide on each trip, of $21.00, amounted in all to Twelve Hundred and
twenty nine Dollars and seven cents, no part of which, has been paid except the Three Hundred and Thirty dollars above.
On the 23rd day of September, 1920, the undertaker presented a claim in due form to the administratrix of the es¡-tate, claiming a balance due of eight hundred and ninety dollars and seven cents. This claim was rejected and, thereafter, on the 9th day of December following, this action was brought against the plaintiff in error as administratrix of the estate to recover the balance claimed to be due.
The petition is the ordinary petition on an account, with the added allegations of the presentation of the bill to' the administratrix and its rejection, and the further allegation: “That the plaintiff is informed and believes-, and upon such information and belief alleges that the said defendant as such administratrix, has assets in her, hands applicable to the payment of plaintiff’s, claim, sufficient to pay the same, and that said assets can be applied to the payment of said claim without materially affecting the rights; of others entitled to priority or equality of payment with said plaintiff. ’ ’
The answer admits the appointment of the administra-trix, the presentation of the claim to her for allowance and its rejection, and denies the other allegations of the petition, and then alleges in substance that the plaintiff so negligently and unskillfully failed and omitted to properly prepare and embalm the body of Samuel Scott Sowers, deceased, for burial, and to carefully and securely enclose and encase the same in a casket, that said body in three days after death of said deceased, emitted extensively such disagreeable and unpleasant odors that the train crew on the railroad, on which it Avas being transported, protested against further carrying the body and threatened to remove the same from the train, and that when it reached its destination in the State of Ohio, about four days after his death, it was in such a condition because of the defective embalming and preparation, and emitted extensively such
disagreeable and unpleasant odors and gases, tliat the funeral services bad to be held out of doors, and the mourners could not view the remains of the deceased * # * and for a further defense to the petition, defendant alleged that the sum paid by her to the plaintiff as alleged in his petition, to-wit-: the sum of Three Hundred and Thirty Dollars, is greatly in excess of the expenses actually incurred and services rendered by plaintiff, as alleged' in his petition.
The reply thereto is a general denial. The case was tried to a jury. The jury found in favor of the plaintiff and fixed the amount of his recovery in the sum of Five Hundred and ¡forty Four Dollars and eighty two cents.
The plaintiff in error seeks to reverse the judgment of the lower court on the sole ground that the petition nowhere alleges that the funeral expenses was a reasonable charge in view of the condition in life of the decedent and of the value of his estate.
Funeral expenses or expenses necessary for a decent burial of the decedent’s body are not properly a claim against the estate in the sense that a claim is an obligation contracted or incurred by the decedent. Some courts and text writers prefer to call it a part of the expenses of administration. However, it is not properly a part of the expenses of administration. It is rarely contracted by the administrator or executor of the estate. Necessarily in most cases the funeral must have taken place before the appointment of the executor or administrator. Funeral arrangements are ordinarily taken care of and arranged by the near relatives and friends of the decedent, sometimes by a stranger, or by ■ the undertaker himself. When reasonable, in view of the size of the estate and the condition in life of the decedent, the expenses of a Christian burial are made a claim against the estate, by implication of law.
‘ ‘ The law with reference to such matters is well settled, and generally understood. Such charges are not, strictly speaking, debts due from the deceased, but charges which
the law out of decency imposes upon his estate. And, so far as these are reasonable in amount, they take legal priority of all such debts; as likewise, do the administration charges. A decent burial should comport with the social condition of the deceased and the amount of his fortune. Justice to creditors, as well as to one’s surviving family, demands however, that there should be no extravagant outlay to their loss. ’ ’
Foley v. Broeksmit, 119 Ia. 457, 93 N. W. 344, 60 L. R. A. 571, 97 Am. St. Rep. 324.
“Funeral expenses are an obligation created by law against the estate of a decedent. ’ ’
Marshall Trust Company v. Carr, (Tenn. Ch. App.) 62 S. W. 204.
‘ ‘ They are liabilities or charges against his estate, raised up and imposed by law, as distinguished from obligations arising by some act or promise of the decedent. ’ ’
Hildebrand v. Kinney, 172 Ind. 447, 87 N. E. 832, 19 Ann. Cas. 788.
“The presumption is that funeral expenses are incurred on the credit of the estate of the deceased. ’ ’
Rice v. New York Cent. Ry. Co., 195 Mass. 507, 81 N. E. 285.
As said above, the claim does not arise in contract, either by the decedent or the administrator, but a reasonable charge arises by implication of law. The undertaker certainly would be entitled to recover the smallest sum for which a decent Christian burial could be had, regardless of the size of the estate or the condition in life of the decedent. The dictates of society demand the decent interment of a human body. This requires a casket, suitable for the incase
ment of a human body, a burial lot in a cemetery, the opening and closing of the grave, the transportation of the body to the place of burial, and ordinarily some public services. This must be done, either from the assets of the estate of the decedent or from the public treasury. The minimum sum for which such a burial may be had must be paid from the estate of the decedent, even though it exhausts all of the available assets. Our statute makes it a prior claim to all others, and on an equality with the expenses of administration. Section 6869, Compiled Statutes, 1920.
It is contended by appellant that the petition in this case does not state facts sufficient to constitute a cause of action, for the reason that it does not allege that the funeral expenses were reasonable and proper in view of the value of the estate and the station in life of the decedent. This objection to the petition was raised for the first time in the motion for a new trial. Appellant bases his contention upon the authority of Golden Gate Undertaking Company v. Taylor, 168 Calif. 94, 141 Pac. 922, 52 L. R. A. (N S.) 1152, Ann. Cas. 1915 D. 742.
In the case of Foley v. Broeksmit, supra, the objection that the funeral expenses were not reasonable in view of the size of the estate and the position in life of the decedent was raised by answer, and that fact set up as a defense. The appellate court determined what the charge against the estate should be under all of the circumstances and gave the plaintiff the option of accepting judgment for that sum or a reversal of the case.
It would not be necessary of course to allege the facts contended for by the appellant, in the words pointed out, in fact, they are a conclusion. Any statement of facts so showing would be sufficient. As above stated, the petition alleged: ‘ ‘ That the plaintiff is informed and believes, and upon such information and belief alleges that the said defendant as such administratrix, has assets in her hands applicable to the payment of plaintiff’s claim, sufficient to pay the same, and that said assets can be applied to the
payment of said claim without materially affecting' the rights of others entitled to priority or equality of payment with said plaintiff. ’
’
The answer of defendant below contained the following allegation: ‘ ‘ For a further defense to said petition, the defendant alleges that the sum by her paid to said plaintiff as alleged in said petition, to-wit: the sum of Three Hundred and Thirty dollars, is greatly in excess of the reasonable value of the expenses incurred and services rendered by said plaintiff as alleged in said petition. ’ ’
This allegation was denied by plaintiff’s reply.
On the trial of the ease the plaintiff, defendant in error, introduced in evidence without objection the appraised value of the estate. Defendant then, on cross examination of the Clerk of Court, showed the claims filed against the estate. This evidence was relevant only on the theory that the funeral expenditures were reasonable in view of the value of the estate. In the discussions between counsel and the court on the admissibility of the plaintiff’s testimony of the making of the funeral arrangements with the son, it appears that the court admitted the testimony on the theory that anyone might bind the estate for such funeral expenditures as was necessary and reasonable under the circumstances.
It is clear that the court had in mind the principle herein contended for by appellant, and applied it in the reception of the evidence in the case. In other words, the case was tried upon the theory that the charges must be reasonable in view of the station in life of the decedent and the value of his estate.
Even though the allegation of the petition were insufficient under the rule in the California case, the defect was cured by the allegations in the answer.
The rule is well established that a defective statement in the petition will be aided and cured by a denial in the answer of the facts defectively stated in the petition.
In 31 Cyc. page 716, it is said: “Whether or, not a declaration or complaint can be aided by a denial in the plea or answer of a fact omitted by the plaintiff, or by an averment in the plea or answer of the non-existence or direct opposite of such fact, upon which averment issue is taken, is a controverted question. The general rule is that a denial or negative form of allegation of this kind will aid a defective complaint or declaration. ’ ’
The text indicates also that there is some authority to the contrary. However the long list of cases supporting the general rule would seem to indicate it to be a safe one. It is certainly logical, as shown by the instant case, the issue in question having been raised and tried.
As illustrative of the language of the cases under the rule just quoted, the case of Catlin v. Jones, 48 Ore. 158, 162, 85 Pac. 515, at 516, may be pertinent. “Now it is not directly averred in the complaint that the plaintiffs were ready and willing at the time and place specified to perform the contract on their part, but this omission was cured by the allegation of the answer that the defendant had the hops at Brooks Station, ready for delivery at the time stipulated, but that there was no one present to receive and pay for them. This averment of the answer is denied by the reply, andan issue thus made on the plaintiff’s readiness and willingness to perform the contract on their part. Consequently the defect in the complaint is cured by the answer. ’ ’ Also see Bledsoe v. Stuckey, 47 Cal. App. 95, 101, 190 Pac. 217 at 220, using the following language: “In the first place, the failure to allege non-payment and perhaps also, the failure to allege demand before bringing suit, was cured by defendant’s denial, in the answer and cross complaint, that there had been any amount paid in excess of the balance due on the note and mortgage, or that there was any amount whatever due or'owing the defendant. While the more common application of the rule of curing defects in a complaint by averments in the answer contemplate an affirmative allegation in the answer of the precise fact omit
ted from the complaint, (Pomeroy on Remedies, See. 579) it seems to Rave been the practice in this state to treat an express, denial by answer of the omitted matter as curing the omission.”
Assuming that the California case cited by plaintiff in error, announcing the rule that there must be an allegation in the petition that the funeral charges were reasonable in view of the circumstances of the estate, is good law, it would seem that under the situation existent in the case at bar plaintiff in error has no cause for complaint.
If the defect in the petition had been called to the attention of the court at any time before judgment, an amendment should have been permitted. Under the rule stated in Kuhn v. McKay, 7 Wyo. 57, 49 Pac. 473, 51 Pac. 352 and Quinlan v. Jones, 27 Wyo. 417, 198 P. 352, it is not material that the amendment was not made.
We think in view of the allegation of the petition quoted and the fact that the defendant raised the issue of the reasonable value of the expenditures and services, and in view of the theory on which the case was tried, the petition was sufficient. Nothing would be gained by a retrial of the case.
We think furthermore that this is one of the immaterial errors, for which, under Section 5708, Compiled Statutes, 1920, this court cannot reverse.
It follows that the judgment of the District Court should be sustained,
Blume, J., and Riner, District Judge, concur.